Necromancing the Equal Rights Amendment.

• Jurisdiction: United States
• Date: 22 December 2000
• Author: Denning, Brannon P.

In 1972, fifty years after an earlier version was first introduced, both houses of Congress approved the Equal Rights Amendment (ERA) by the necessary two-thirds vote, and, in accordance with the Constitution's amendment procedure, sent it to state legislatures, where three-fourths of them would have to ratify it before it could become the law of the land.(1) As had been the contemporary practice, Congress prescribed a seven-year deadline for ratification. The initial prognosis for the ERA was good: of the thirty-two state legislatures that were in session in 1972, over twenty ratified the amendment.(2) But ratifications soon slowed to a trickle, due in part to social conservatives' deft exploitation of public fears about changes that would be wrought by an ERA in the hands of an activist judiciary.(3) By 1979, the original deadline, only thirty-five of the requisite thirty-eight states had ratified.

Three states shy of ratification, ERA proponents persuaded Congress to extend the deadline for ratification until 1982.(4) By then, however, even ardent supporters were exhausted, while ERA opponents were just warming to the fight. To make matters worse for supporters, five states rescinded their earlier ratifications(5) (though Kentucky's acting governor purported to veto its legislature's vote to rescind). Before the validity of those rescissions could be hashed out in the courts, however, the new deadline passed and ERA's opponents declared victory. Its proponents, meanwhile, were left to advance women's rights using the Equal Protection Clause and the Civil Rights Act's prohibition of sex discrimination.

Now, however, because of an extraordinary series of events that resulted in the irregular ratification of the Twenty-Seventh Amendment(6) (also known as the "Madison Amendment") 200 years after it was first proposed, ERA proponents are hoping to reanimate the ERA for the proverbial charmed third time.(7) We argue here that the Madison Amendment's precedential value for the ERA is slight at best, and that, in any event, given the subsequent history of the Twenty-Seventh Amendment, supporters of the ERA will not want to follow that precedent.

II

Originally proposed as one of James Madison's original twelve amendments,(8) ten of which became our Bill of Rights, the Madison Amendment provided that changes in congressional pay would not take effect until an election had occurred. When proposed in 1791, this amendment initially gained the assent of only six states; four short of the number needed to ratify (a number that increased as other states joined the Union).(9) In the 1870s, when Congress retroactively increased members' salaries to $2,500 a year, Ohio ratified the amendment in protest. In 1978, after decades of rising congressional salaries, Wyoming added its ratification, bringing the number to eight.(10)

In 1982, Gregory Watson, a student at the University of Texas at Austin, wrote a term paper in which he argued that the amendment could still be ratified. Although he received only a C for his efforts,(11) he launched a low-key crusade that mustered thirty-two additional state ratifications.(12) In 1992, the national archivist in charge of keeping a tally certified that the amendment had been ratified; and in an election year marked by unprecedented public hostility towards Congress, both houses ratified the certification by lopsided votes--99 to 0 in the Senate, and 414 to 3 in the House.(13)

III

The ratification of the Twenty-Seventh Amendment has, not surprisingly, given ERA supporters renewed hope. And why not? Proponents can hardly be faulted for asking why the passage of twenty-eight years should pose a barrier to ratification of the ERA when it took 203 years to ratify the Twenty-Seventh Amendment.(14) But the advocates of this belated ratification overlook at least three important distinctions between the ERA and the Twenty-Seventh Amendment.

First, no time limit accompanied the Twenty-Seventh Amendment; the Equal Rights Amendment, by contrast, has exhausted not one, but two such limits. Many in 1979 questioned the propriety of extending the first deadline at all, much less by majority vote instead of the two-thirds congressional supermajority required to propose amendments. (Proponents defended the decision to extend the deadline on the ground that the original time limit was placed in the amendment's authorizing resolution; not in the text of the amendment itself, where it would be self-enforcing.) If the first extension was like adding an extra quarter to benefit the losing team in a football game, allowing ratification efforts to resume twenty years after ERA's apparent defeat is like authorizing the losing team to continue a game after the winning team has left the stadium.

Second, unlike the Twenty-Seventh Amendment, which unquestionably got more popular with age,(15) at least five states attempted to rescind their initial ratification of the ERA, some in response to the extension of the initial time limit.(16) Were additional states to ratify an allegedly revived ERA, a question would immediately arise whether those rescissions were valid. While pundits debated whether three or eight additional states were needed to ratify, more states would likely attempt to rescind (though in a post-Ally McBeal world it is difficult to imagine that the prospect of unisex bathrooms--a favorite bugaboo of ERA's opponents--would be as effective as a scare tactic this time around).(17) State second-guessing of the ERA belies any notion that public opinion has been ineluctably moving in favor of ratification.

The third point is related to the first two. The ERA was proposed with great fanfare and was vigorously debated by both sides. Proponents had two shots to make their case. For a variety of reasons, including judicial victories that seemed to render the ERA superfluous,(18) they fell short. To allow a third bite at the apple for the ERA would suggest that no amendment to the U.S. Constitution ever proposed--including the amendment that some right-wingers think strips lawyers of their citizenship and whose ratification in the early...